| dc.contributor.author | KWARIKO. J.A., MWANDAMBO, J.A. AND KENTE, J. A | |
| dc.date.accessioned | 2023-05-03T11:33:48Z | |
| dc.date.available | 2023-05-03T11:33:48Z | |
| dc.date.issued | 2022-09-13 | |
| dc.identifier.uri | http://localhost/handle/123456789/1185 | |
| dc.description | RUTH MAKARANGA VS. SALUM AYUBU COURT OF APPEAL OF TANZANIA
AT DAR ES SALAAM (Kwariko, Mwandambo and Kente JJ.A)
CIVIL APPLICATION NO. 363/17 OF 2021
Application for Revision from the Ruling and Order of the High Court of Tanzania (Land Division) at Dar es Salaam in Misc. Land Application No. 385 of 2020 by Mango, J)
Civil Procedure and Practice- Revision- Whether non-inclusion of all records of the trial Court in application for revision is fatal?
Civil Procedure and Practice- Revision- which matters are revisable by the Court of Appeal?
Civil Procedure and Practice- Revision- whether the decision rejecting application for review by the High Court is revisable by the Court of Appeal?
Civil Procedure and Practice- Review- Grounds for Review at the High Court?
Civil Procedure and Practice- Review- limits of power of the Court when exercising power of review?
Civil Procedure and Practice-Review -error on face of record- what constitutes apparent error on face of record?
Facts;
By a notice of motion taken under section 4(3) of the Appellate Jurisdiction Act (the AJA) and rule 65 (1)(2)(3)(4) and (5) of the Tanzania Court of Appeal Rules, 2009, the applicant is moving the Court to revise the decision of the High Court of Tanzania (Mango, 1), Land Division at Dar es Salaam. The impugned ruling arises from an application for review in Misc. Land Application No. 385 of 2020 on the ground that there is an apparent error on the face of the record.
The Application was intimated with preliminary objections on grounds that; the application is incompetent for failure to include the proceedings of the lower courts; and, that the application is incompetent and bad in law for being preferred as an alternative to appeal.
Held;
1. As a general rule it is the duty of the applicant to lodge with the Court a complete record of the proceedings sought to be revised as stated in the case of Zanair Limited and Another v. Hassan & Sons Ltd, Civil Application No.348/15 of 2017 (unreported). However, the entire record of proceedings of the lower courts are not necessary for the determination of this application revision and therefore non-inclusion is not fatal especially where the decision or order sought to be revised is included.
2. It is trite law that revisional jurisdiction of the Court is exercisable in matters which are not appealable to the Court with or without leave or where the appellate process has been blocked by a judicial process. The Court reinstated the principles in the case of Halais Pro-Chemie v. Wella A. G [1996] T.L.R. 269, Moses Mwakibete v. Editor-Uhuru & Two Others [1995] T.L.R. 134 and Transport Equipment Ltd. v. D.P. Valambhia [1995] T.L.R. 161.
3. The remedy for application for review that has been rejected by the High Court is revision since her right of appeal is blocked by judicial process in terms of XLII Rule 7(1) of the Civil Procedure Code. The Court also reiterated its earlier stance as stated in the case of Bin Kuleb Transport Company Limited v. Registrar of Titles & Three Others, Civil Application No. 522/17 of 2020 (unreported)
4. In terms of Order XLII Rule 1 of the Civil Procedure Code, the Court has power to review its decision on three grounds; one, discovery of new evidence which could not have been produced or come to the party's knowledge after exercise of due diligence; two, some mistake or error apparent on the face of the record or; three, for any sufficient reason.
5. It is a settled law on review that the power of review should not be confused with appellate powers which enables an appellate court to correct all errors committed by the subordinate court.
6. Apparent error on face of record is a self-evident error on the face of the record not involving an examination or arguments to establish it. an error which has to be established by a long-drawn process or arguments and reasoning to establish it on points capable of two opinions cannot qualify to be an error apparent on the face of the record. The Court made reference to it in its decision in the case of Chandrakant Joshubhai Patel v. R [2004] T.L.R. 218, Karim Kiara v. R, Criminal Application No. 4 of 2007 and Epson s/o Michael v. R, Criminal Application No. 5 of 2009 (both unreported)
Application dismissed with costs
Statutory provision referred to;
1. Civil Procedure Code, [Cap 33 R.E 2019], Order XLII Rule 1, 7(1)
Case laws referred to;
1. Halais Pro-Chemie v. Wella A. G [1996] T.L.R. 269,
2. Moses Mwakibete v. Editor-Uhuru & Two Others [1995] T.L.R. 134
3. Transport Equipment Ltd. v. D.P. Valambhia [1995] T.L.R. 161.
4. Chandrakant Joshubhai Patel v. R [2004] T.L.R. 218,
5. Karim Kiara v. R, Criminal Application No. 4 of 2007 (unreported)
6. Epson s/o Michael v. R, Criminal Application No. 5 of 2009 (unreported)
7. Bin Kuleb Transport Company Limited v. Registrar of Titles & Three Others, Civil Application No. 522/17 of 2020 (unreported)
8. Zanair Limited and Another v. Hassan & Sons Ltd, Civil Application No.348/15 of 2017 (unreported). | en_US |
| dc.description.abstract | 1. As a general rule it is the duty of the applicant to lodge with the Court a complete record of the proceedings sought to be revised as stated in the case of Zanair Limited and Another v. Hassan & Sons Ltd, Civil Application No.348/15 of 2017 (unreported). However, the entire record of proceedings of the lower courts are not necessary for the determination of this application revision and therefore non-inclusion is not fatal especially where the decision or order sought to be revised is included.
2. It is trite law that revisional jurisdiction of the Court is exercisable in matters which are not appealable to the Court with or without leave or where the appellate process has been blocked by a judicial process. The Court reinstated the principles in the case of Halais Pro-Chemie v. Wella A. G [1996] T.L.R. 269, Moses Mwakibete v. Editor-Uhuru & Two Others [1995] T.L.R. 134 and Transport Equipment Ltd. v. D.P. Valambhia [1995] T.L.R. 161.
3. The remedy for application for review that has been rejected by the High Court is revision since her right of appeal is blocked by judicial process in terms of XLII Rule 7(1) of the Civil Procedure Code. The Court also reiterated its earlier stance as stated in the case of Bin Kuleb Transport Company Limited v. Registrar of Titles & Three Others, Civil Application No. 522/17 of 2020 (unreported)
4. In terms of Order XLII Rule 1 of the Civil Procedure Code, the Court has power to review its decision on three grounds; one, discovery of new evidence which could not have been produced or come to the party's knowledge after exercise of due diligence; two, some mistake or error apparent on the face of the record or; three, for any sufficient reason.
5. It is a settled law on review that the power of review should not be confused with appellate powers which enables an appellate court to correct all errors committed by the subordinate court.
6. Apparent error on face of record is a self-evident error on the face of the record not involving an examination or arguments to establish it. an error which has to be established by a long-drawn process or arguments and reasoning to establish it on points capable of two opinions cannot qualify to be an error apparent on the face of the record. The Court made reference to it in its decision in the case of Chandrakant Joshubhai Patel v. R [2004] T.L.R. 218, Karim Kiara v. R, Criminal Application No. 4 of 2007 and Epson s/o Michael v. R, Criminal Application No. 5 of 2009 (both unreported) | en_US |
| dc.language.iso | en | en_US |
| dc.publisher | THE COURT OF APPEAL OF TANZANIA, DAR ES SALAAM. | en_US |
| dc.subject | DAR ES SALAAM. | en_US |
| dc.title | RUTH MAKARANGA VS. SALUM AYUBU CIVIL APPLICATION NO. 363/17 OF 2021 | en_US |
| dc.title.alternative | CIVIL APPLICATION NO. 363/17 OF 2021. | en_US |
